Argued June 25, 1884
Decided October 7, 1884
Henry M. Taylor for appellant. O.D.M. Baker for respondent.
The contract of purchase and sale between the original parties contemplated the creation of a right to take ice from the unsold lands of the grantor as an incident to the conveyance of the half acre and an appurtenance of the land conveyed. It is impossible to study the arrangement in its details and arrive at a different conclusion. The half acre of land was purchased for the known and declared purpose of erecting thereon an ice-house to store the product of the pond, and as a means of conducting the ice business. The terms of the deed substantially so declare, and the fact is not denied by the findings of the trial court. The right thus given was a natural, appropriate, and necessary adjunct of the land conveyed, having in view the purpose for which it was purchased, on the one hand, and sold, on the other. There was no sale of the right in gross for its own sole and separate consideration, but the price of the land paid and to be paid covered the land with its right attached. The arrangement was meant to be continuous, and to follow the two estates irrespective of their ownership. The conveyance of the right, like that of the land, was to the grantee and his assigns, and the former was declared in terms to pass as "incident" to the grant of the latter. And then the grantee, "for himself, his heirs and assigns," covenants to furnish ice to the successive grantees of the pond and mill privilege so long as they reside in the town of Rhinebeck. The contract thus contemplated a dominant and servient estate. If a mill, dependent upon water-power, had stood upon the half acre, the right to draw from the pond would have passed with the land as an appurtenant easement, if such had been the actual situation of the premises, or the express agreement of the parties. If no mill and no raceway were there, but the purchase was for the purpose of erecting them, and the deed gave the water-right accordingly and as incident to the conveyance, such right would become an appurtenance, at least when exercised, and pass with the land. But the right in question here is of a somewhat different character, and upon that difference is founded the conclusion of the General Term, and much of the argument before us.
The opinion below asserts that the right under consideration was not an easement attached to a dominant estate, and not an appurtenance of the latter. The reason assigned is in these words: "A right by which one person is entitled to remove and appropriate for his own use any thing growing in, or attached to, or subsisting upon the land of another for the purpose of the profit to be gained from the property thereby acquired in the thing removed, has always been considered in law a different species of right from an easement. Such right is a privilege, and so is an easement; but the latter is a privilege without profit, and is merely accessorial to the rights of property in land, while the former is the reverse. If granted to one in gross it is so far of the character of an estate or interest in the land itself that it is treated as such." Authority is then cited for the doctrine. (Per Chancellor WALWORTH, Post v. Pearsall, 22 Wend. 425; Godd. on Easements, 5 et seq.; 2 Washburn, 11 et seq., 312, 521, 528.) And the learned General Term add that "an easement proper in gross cannot be created by grant so as to be assignable or inheritable." ( Ackroyd v. Smith, 10 C.B. 164.)
It must be admitted that the strict and technical definition of an easement excludes a right to the products or proceeds of land, or, as they are generally termed, profits a prendre. But that such a right is in the nature of an easement, and although capable of being transferred in gross, may also be attached to land as an appurtenance and pass as such, is shown by the authorities to which the General Term refer. In Post v. Pearsall ( supra) the language of the chancellor is, "for a profit a pendre in the land of another, when not granted in favor of some dominant tenement, cannot properly be said to be an easement, but an interest or estate in the land itself." That it may be so granted by the terms of the grant as to become an appurtenant right in the nature of an easement is implied in the citation. Washburn, to whose discussion of the subject we are referred, says distinctly, "this right of profit a prendre, if enjoyed by reason of holding a certain other estate, is regarded in the light of an easement appurtenant to such estate;" (Wash. on Eas. 8, § 7); and alluding also to rights acquired by custom or dedication, the author adds: "it would be difficult to treat of easements or servitudes, without embracing these rights, as well as that of taking profits in another's land which one may enjoy in connection with the occupancy of the estate to which such right is united." It seems, therefore, to be the law, that a right to take a profit from another's land, although capable of being transferred in gross, may also be so attached to a dominant estate as to pass with it by a grant transferring the land with its appurtenances.
The case of Ackroyd v. Smith (10 C.B. 164) does not controvert this doctrine, but rather limits and restricts it. There the controversy arose over a grant of way to the premises conveyed "for all purposes," and the question came up whether a conveyance of the alleged dominant estate carried this right to the purchaser, and it was ruled that it did not. The court said: "If the right conferred by the deed set out was only to use the road in question for purposes connected with the occupation and enjoyment of the land conveyed, it does not justify the acts confessed by the plea. But if the grant was more ample, and extended to using the road for purposes unconnected with the enjoyment of the land, — and this, we think, is the true construction of it, — it becomes necessary to decide whether the assignee of the land and appurtenances would be entitled to it." The court thereupon ruled that "it is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it, and held that such right must "inhere in the land;" "must concern the demised premises and the mode of occupying them;" "must be quodammodo annexed and appurtenant to them;" "must both concern the thing demised and tend to support it, and support the reversioner's estate." That the right claimed in the present case is within the boundary assigned seems to us quite certain. It respected the use and occupation of the half acre; was necessary and essential to that use; and directly concerned the mode of occupying the land as contemplated both by vendor and vendee. An instructive case on this point is that of Grubb v. Guilford (4 Watts, 223). There, on sale of twenty acres of ore-bank, a right was also given to the grantee to enter upon other lands of the grantor and search for iron ore, and mine and carry it away. The question was whether such right was appurtenant to the twenty acres, and it was held that it was not. Among the reasons given were that a separate consideration for the ore mined was to be given, and that the right was in no manner necessary to the use or occupation of the twenty acres, and did not concern or affect it at all. The furnace to be supplied was on other lands, and the court said that the argument tended only to show that the right was appurtenant to the furnace, and not to the twenty acres, because while it was needed for the one, it was not for the other, and in no manner concerned it.
The answer made by the respondent to this view of the case is threefold. Her counsel argue that the right in question was a mere license, and passed no estate in the land. But a license is revocable and disappears upon a conveyance, binding in no respect the new grantee, and the vendor did not so understand the right he had given, for when he conveyed he did so "subject to the right heretofore conveyed to J. Howard Asher, of taking ice from the pond", — a provision meaningless and unnecessary if referred to a license revocable at any moment. The grantee had no such intent or understanding, for he went on at once to construct his ice-house, and organize his business at an expense which must have been serious and considerable, and which he would not have done had he known that he held but a mere license which his grantor could at will revoke. ( Wetmore v. White, 2 Caine's Cas. 87; Wiseman v. Lucksinger, 84 N.Y. 39, 40.) And if the deed to Asher did not pass an interest in the grantor's land covered by the pond, it passed nothing, for it did not transfer any ice. There was none at the time to be transferred, and when it formed, Asher had no title to the whole or any specific part of it. He had simply a right to acquire such title to so much as would fill his ice-house on the half acre, by going upon the premises, and cutting and taking that quantity. The case of Doe v. Wood (2 B. Ald. 724) illustrates the distinction. In that case the grant was of a right to search for metals in the grantor's land, and to raise and dispose of the same when found. It was held to be not a specific grant of the metals in the land, but a right of property only as to such part thereof as, under the liberties granted, should be dug and got, and that such right was an incorporeal privilege. And in Grubb v. Guilford ( supra) it was expressly ruled that the right to raise ore was an incorporeal hereditament and not, as had been contended, a license revocable at the will of the parties.
Then it is further said that the grantor and those succeeding him were not bound to maintain the dam, and when the pond was destroyed the right was gone. It may be that they were not bound to maintain it, but that fact did not authorize them to destroy it or prevent its necessary repair. To assert that, is at once to convert the easement into a mere license, revocable at any moment. The grant of the easement carried with it whatever was essential to its enjoyment, and gave to the owner of the dominant estate the right to repair and rebuild the dam. (Washb. on Easements, 39, 565; Roberts v. Roberts, 55 N.Y. 275.)
After the original conveyance to Asher, the defendant became a lessee of the lot. Before that, her lessor had built the ice-house and taken ice from the pond with which to fill it, and so exercised his right and made it parcel of his estate. In 1872 one of Hogan's grantees had destroyed the dam, and no ice was taken until 1877. In the fall of that year, the defendant, being lessee, applied to and obtained plaintiff's consent to build a temporary dam and cut the ice, which was done; the dam being removed in the spring of the next year. The defendant afterward became owner by a deed from Asher. Upon these facts it is argued that the defendant admitted that the right to take ice had ended in 1872. It would be quite as just an inference that plaintiff admitted a right to replace the dam. She does not appear to have denied such right until the next year.
The whole question, thus, turns upon the inquiry whether the privilege granted was of such a character as to be in the nature of an easement and become, when exercised, an appurtenance. It does not concern or inhere in the land precisely like a right of way which is essential or convenient irrespective of the use to which the land is put, but does do so relatively to that use, as in the case of land used for a mill or for the manufacture of iron. In those cases, as in this, the use for which the land was bought, and which characterized the contract of purchase, became the essential element by which the privilege granted was to be measured and judged. The right to take ice from the pond was the one essential thing leading to the purchase of the half acre, justifying the building put upon it, and making possible the performance of the covenants for supply. We think that right passed to the present defendant.
The judgment should be reversed and a new trial granted, costs to abide the event.